GIRFEC breaches Article 8 and the Data Protection Act

Voices of dissent over the Great God GIRFEC appear to be gathering a head of steam and and, what’s more, they are singing from remarkably similar song sheets in relation to the legality (or otherwise) of this universal surveillance policy dressed up in child protection clothing.

The state sponsored intrusion into private family lives is already well underway and being implemented without question by naive (or complicit) professionals to the detriment of parents and children in Scotland, many of whom have found it well nigh impossible to shake off unwanted tick box tyrants who believe every child should be brought up using state dictated indicators to meet state dictated outcomes. This is despite the policy having no statutory foundation and being in breach of Article 8 of the ECHR and the Data Protection Act (which is a UK wide statute from which Scotland may not divert without reference to the UK Government).

Now that written evidence has been submitted by interested parties to the Scottish Parliament’s Education & Culture Committee, it is refreshing to note that the Law Society of Scotland’s views on the information sharing and Named Person provisions within the Children & Young People Bill accord with our own. Somewhat predictably, however, the Scottish Government’s template soundbites never seem to change and do not address the points made in relation to human rights and data protection breaches.

In relation to the information-sharing provisions, the policy memorandum explains that these provisions potentially engage Article 8. Leaving aside the EU implications, we would point out that data protection is reserved to the UK parliament and that legislation affecting data protection rights is outwith the competence of the Scottish Parliament.

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The committee is also concerned that article 8 could be engaged in respect of the parent’s right to respect for private and family life, as there is scope for interference between the role of the named person and the exercise of a parent’s rights and responsibilities.

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In the committee’s view, the SHANARRI indicators as set out in section 74(2) (namely Safe, Healthy, Achieving, Nurtured, Active, Respected, Responsible, and Included) which together define “wellbeing” – while clearly desirable attributes for Scotland’s children and young people to have – do not offer a tool with which to make a clear assessment and in the committee’s view are not appropriate for enshrinement in primary legislation.

In response to the concerns raised in a number of submissions, including our own, the Scottish Daily Express, in its article Parents fight SNP’s plan for state guardians, has highlighted growing opposition to the Bill and reported on the likely legal pitfalls of the most contentious provisions.

Lawyers raised the prospect of a legal challenge under the European Convention on Human Rights, which gives everybody the right to a private and family life, free from state interference.

The measure could also see social work, health and education staff diverted away from where they are most needed, the [Law] society said.

Politics UK has also reported on the “sinister plan to give all children a state guardian” and the momentum which appears to be gathering as people become aware of the true nature of the GIRFEC surveillance scheme.

The guardians, who are defined so widely they could effectively be anyone who is not the child’s parents, would be responsible for ensuring the child’s upbringing is in line with state-approved standards and of reporting any problems to the authorities.

Ironically, the Scottish Care Commission has been invited to ‘inspect’ the Isle of Man services!

Q183. The Speaker: Can you state for us then, just for the record, why it is that you are not going for an Ofsted type of inspection of the Social Services, but instead using the Scottish 280Government Care Inspectorate who themselves are in the process, through their Children and Young People (Scotland) Bill, of widening out the definition forstate intervention from the narrow one of significant harm to the ‘Getting it right for every child’ definition, which looks awfully like the… (The Minister: Every Child Matters.) Every Child Matters policy and you are getting their inspectors to come here.

The Minister:Mr Speaker, fear not because we are determined that we will not end up in a situation where we are returning to anything that looks remotely like Every Child Matters. It was a mistake. Everybody understands and recognises it was.

To specifically answer your question, my initial instinct was to go with Ofsted. That seemed to me the right thing to do. However, because the UK was slightly ahead of us, in terms of recognising the failures of Every Child Matters, it was very much a situation in the UK where they were still locked into Every Child Matters agenda as Ofsted inspectors, and they were beginning to move away from it. What I feared, if I called Ofsted in at that particular time, and I am pretty confident that this is what would have happened, we would have an inspection based on the Every Child Matters agenda, which is what we were trying to move away from.

So at the point the decision was made to recruit the inspectors, we were much more comfortable with the Scottish model. That does not mean to say that that is necessarily where we will stay. We will continue to review it because it is important to appreciate, and I think I am on record as saying this already, that inspections are part of the process. They are not a one-off that just happens once in a blue moon. They should happen as regularly as necessary, so that we continue to check back to see how we are getting on.

Scottish Ministers should perhaps heed the warnings from the Isle of Man before squandering £138 million a year on an unworkable scheme which fails to focus resources on the most vulnerable children and is beyond the legislative competence of the Scottish Parlianent. It’s not (yet) too late to change the record.